Chi v Technical and Further Education Commission

[2012] NSWCA 421

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Chi v Technical and Further Education Commission [2012] NSWCA 421

Hearing dates:

3 July 2012

Decision date:

17 December 2012

Before:

McColl JA (at [1]); Barrett JA (at [2]); Gzell J (at [42])

Decision:

1. Appeal dismissed.

2. That the appellant pay the respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

HUMAN RIGHTS - discrimination - racial discrimination - victimisation - student at TAFE alleges that he was refused enrolment in certain course modules because of a complaint made by him about alleged conduct of certain TAFE staff - whether alleged conduct complained of "would amount to" contravention of prohibition on racial discrimination - only potentially relevant alleged conduct consisted of statement by a teacher to appellant "You could not read English" - need to compare that alleged conduct towards appellant with conduct that would have been engaged in towards a member of the relevant comparator group - such group consists of students perceived by teacher to be unable to read English where the inability does not result from race, ethnicity or national origin - PROCEDURE - appeal - appeal confined to appeal on question of law - whether question whether conduct is contravention of statutory prohibition is a question of law.

Legislation Cited:

Administrative Decisions Tribunal Act 1997, s 119
Anti-Discrimination Act 1977, ss 4(1), 17(2), 50

Cases Cited:

B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481
Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271
Chi v Technical and Further Education Commission [2010] NSWADTAP 67
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92

Category:

Principal judgment

Parties:

Johny Chi - Appellant
Technical and Further Education Commission - Respondent

Representation:

R Francois - Appellant
P Ginters - Respondent
Gilbert & Tobin - Appellant
I V Knight, Crown Solicitor - Respondent

File Number(s):

2011/34507

 Decision under appeal 

Citation:

Chi v Technical and Further Education Commission [2010] NSWADTAP 67

Date of Decision:

2010-10-11 00:00:00

Before:

Patten D - Deputy President; Huntsman C - Judicial Member; Hiffernan N - Non-Judicial Member

File Number(s):

061089

JUDGMENT

1. McCOLL JA: I agree with Barrett JA's reasons and the orders his Honour proposes.

1. BARRETT JA: The appellant was, at material times, a student enrolled in an information technology course conducted by the respondent, Technical and Further Education Commission ("TAFE"), at the TAFE Sydney Institute, Ultimo.

1. The appellant was born in Taiwan in 1957 and is of Asian ethnicity. He has lived in Australia since 1985. English is his second language.

1. In October 2005, the appellant lodged a complaint against TAFE with the Anti-Discrimination Board. He alleged race and disability discrimination and victimisation while he was a student enrolled in the information technology course.

1. Elements of the appellant's grievances (being elements concerning race) eventually became the subject of appeal proceedings in the Appeal Panel of the Administrative Decisions Tribunal.

1. The appeal to the Appeal Panel followed the Administrative Decisions Tribunal's dismissal of a complaint by the appellant that TAFE had engaged in impermissible victimisation of him when its employee, Ms Siljanovic (the head teacher in the department of the Sydney Institute that conducted the relevant course), refused to allow him to enrol in certain course modules because of prior complaints made by him: Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271.

1. The appellant's appeal to the Appeal Panel was also dismissed: Chi v Technical and Further Education Commission [2010] NSWADTAP 67.

1. The appellant appeals to this Court under s 119 of the Administrative Decisions Tribunal Act1997. At the centre of his appeal is the proposition that the Appeal Panel misconstrued and failed to apply s 50(1)(c) of the Anti-Discrimination Act1977.

1. Section 50 of the Anti-Discrimination Act is in these terms:

"(1) It is unlawful for a person ('the discriminator') to subject another person ('the person victimised') to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith."

1. It is the appellant's contention that TAFE, through Ms Siljanovic, subjected him to a "detriment" (in the form of refusal to allow enrolment in the particular course modules) "on the ground that" the appellant had made an allegation or allegations of the kind described in s 50(1)(c). He says that the refusal to allow enrolment followed, in a relevantly causal way, upon his making a written complaint that contained one or more allegations that employees of TAFE had committed acts that "would amount to a contravention" of the Act.

1. The Appeal Panel proceeded on the basis that all relevant allegations by the appellant were contained in a document dated 20 July 2004. The document was prepared by the appellant, sent by him to TAFE and received by TAFE on 2 August 2004. I shall refer to this document as the "August 2004 complaint".

1. Counsel for TAFE took the Court to the appellant's amended points of claim filed in the Tribunal. It is there made plain that the case advanced under s 50(1)(c) was based wholly on the content of the August 2004 complaint. That, coupled with the approach the Tribunal took, as shown by its decision, means that there is no basis on which this Court should look beyond the August 2004 complaint and have regard to other allegations on which the appellant's counsel sought to place reliance.

1. Among the questions for decision by the Appeal Panel was a question about the quality of the August 2004 complaint - whether the act or acts of TAFE alleged in that complaint "would amount to a contravention" of the Act. The Appeal Panel's negative answer to that question is at the centre of the appeal that the appellant has brought to this Court.

1. This gives rise to an initial question whether the appeal is competent. Under s 119(1) of the Administrative Decisions Tribunal Act, a party to Appeal Panel proceedings has a right of appeal to the Supreme Court against any decision of the Appeal Panel in those proceedings, but only "on a question of law".

1. The scope of a right of appeal framed in this way and the meaning of "on a question of law" were considered by this Court in B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481. It is sufficient, for present purposes, to refer to two established principles there mentioned. First, the question whether facts found fall within a statutory provision properly construed is generally a question of law: Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7 per Mason J (Gibbs, Stephen, Murphy and Aickin JJ concurring). Second, this principle is qualified when the statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words: NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509 at 512 per Kitto J.

1. The question whether an act or acts "would amount to a contravention" of a statutory provision clearly goes beyond the ordinary meaning of words. It entails a judgment as to legal characterisation of the act or acts according to statutory criteria. It is therefore a question of law.

1. It follows that, to the extent that the appellant seeks, on appeal to this Court, to challenge the Appeal Panel's conclusion that the acts of TAFE alleged by him would not amount to a contravention of the Anti-Discrimination Act, he brings his appeal "on a question of law" as allowed by s 119(1) of the Administrative Decisions Tribunal Act. I proceed, therefore, to address that question of law.

1. The Appeal Panel decided that the appellant had failed to establish that the acts of TAFE (or, more precisely, employees of TAFE) alleged by him in the August 2004 complaint were of such a quality as to amount to a contravention of the Act. The Appeal Panel said that the August 2004 complaint "stops well short of alleging a contravention of the Act". In this respect, the Appeal Panel agreed with the conclusions of the Tribunal (at [78] and [93] of its decision) that the August 2004 complaint contained no allegation of racial discrimination or racial intolerance and made no reference to the appellant's race. There were references to "clash of personalities", rather than race, being an operative factor.

1. The appellant contends that the Appeal Panel mischaracterised the quality of the allegations in the August 2004 complaint and, in that respect, fell into the same error of law as the Tribunal at first instance.

1. The focus of the appeal is upon the question whether the appellant did a thing mentioned in s 50(1)(c): did he, in the August 2004 complaint, make an allegation that TAFE or someone else had committed an act that, objectively characterised, "would amount to a contravention of this Act"?

1. The only species of contravention said to be relevant is that in s 17(2):

"It is unlawful for an educational authority to discriminate against a student on the ground of race:

(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment."

1. Section 4(1) says:

"'race' includes colour, nationality, descent and ethnic, ethno-religious or national origin."

1. There is no dispute that, in the August 2004 complaint, the appellant made allegations of acts by employees of TAFE. TAFE accepted before the Tribunal that the alleged acts of the employees are to be treated as alleged acts of TAFE. The task is to identify each act of TAFE alleged by the appellant in the August 2004 complaint and to decide whether that act, objectively characterised, had the following characteristics: first, it constituted discrimination against the appellant; second, the discrimination was by denying or limiting the appellant's access to a benefit provided by TAFE; and, third, the discrimination was on the ground of race.

1. The subject of the August 2004 complaint is identified as "Complaint of unfair mark of my e-commerce subject". The August 2004 complaint begins:

"I have suffered a long period of discrimination and harassment from my e-commerce teacher Ms Debra McHugh and there was no solution which I could get from my head teacher Ms Di Siljanovic."

1. The August 2004 complaint goes on to make the following points concerning the appellant's treatment by TAFE:

1. Ms McHugh, the e-commerce teacher, did not really teach about the e-commerce subject during the class and this made the appellant doubt her capability and knowledge of the subject.

2. From February 2004, Ms McHugh did not answer questions asked by the appellant in class and started to criticise him repeatedly and continually.

3. For example, she said in front of the whole class: "You could not read English".

4. The appellant tried to ask questions of his classmates but Ms McHugh stopped him doing so.

5. Ms McHugh marked the appellant's final examination unfairly and asked him to hand in a project earlier than other students.

6. The appellant raised concerns with the head teacher, Ms Siljanovic, around May 2004.

7. After being unable to get better tuition from Ms McHugh and more access to the computer from Ms Siljanovic, the appellant approached a counsellor on 18 June 2004.

8. Ms Siljanovic became upset with the appellant, looked for him in Ms McHugh's class and, on 22 June 2004, criticised him in front of the class and threatened to stop his access to the computer if he did not attend a meeting with her later that day.

9. The appellant asked that the meeting be re-scheduled because he had to prepare work for an examination and the handing in of a project the next day but the meeting went ahead and the appellant attended. He considered the meeting a waste of time as nothing was offered. This made him feel more pressure and caused him difficulties in dealing with the next day's examination.

10. Another student had been offered the use of the computer every night for a few weeks before the examination and for the handing in of his or her project, but these advantages were not given to the appellant.

11. During the meeting, Ms Siljanovic defended Ms McHugh's teaching methods which the appellant considered less advantageous to students than those adopted at Macquarie University.

12. The appellant's examination was marked unfairly, particularly in comparison to the marking of the paper of a student named Philip.

13. Ms Siljanovic arranged for Mr Dean Nguyen to re-mark the appellant's examination paper but Mr Nguyen had previously refused to answer his questions.

14. Ms Siljanovic caused embarrassment to the appellant by asking on 19 July 2004 why he was in class and telling him he should not be there.

15. Ms Bennett, in response to a complaint made by the appellant on 13 July 2004, said that she would arrange a meeting on 22 July 2004 but she did not do so. After the appellant raised the matter with a senior counsellor on 19 July 2004, a meeting was arranged for 20 July 2004 at which Ms Siljanovic showed the appellant an email she said she had sent to him which he had not received offering him another examination on 25 June 2004.

16. The examination in the subject taught by Ms McHugh was the only one that the appellant did not pass. He was awarded a mark of 42% but this resulted from a flawed marking system and he should have been given a re-marking of his paper or another examination with an independent assessor.

1. There are numerous allegations here. The Court is not called upon to decide whether they have substance or merit. The TAFE staff members might well have quite different views of the relevant events. The only question of present relevance is whether the appellant's allegations, as allegations, are of the kind mentioned in s 50(1)(c).

1. The August 2004 complaint refers at the beginning to "discrimination" and "harassment" by Ms McHugh. That opening statement does not, however, refer to any particular act as amounting to "discrimination" or "harassment"; nor does it ascribe any quality to the "discrimination" or "harassment", whether racial or otherwise.

1. The August 2004 complaint then proceeds to describe, by reference to particular acts, ways in which the appellant, on his view of matters, was treated less favourably or less fairly than other students or was denied opportunities that other students were given. He complains also about what he considers to be the incompetence of his teacher and poor treatment by the head teacher and counsellors he approached with a view to obtaining attention to his grievances. In relation to the appellant's treatment compared with that of other students, the August 2004 complaint alleges acts of different treatment (for example, that set out at [25](10) above) but, again, does not ascribe any racial quality or foundation to the discrimination.

1. The only part of the conduct alleged in the August 2004 complaint that might conceivably raise indirectly a matter of race is the particular example given of the repeated and continual criticism alleged to have been made by Ms McHugh from February 2004, that example being the statement "You could not read English" allegedly made by her in front of the whole class.

1. It is a characteristic of people of many races that they cannot read English. The vast majority of persons who are born into societies where a language other than English is the native tongue cannot read English. It may therefore be taken to be a characteristic of persons of a great number of nationalities and ethnic or national origins that they cannot read English. At the same time, however, some persons born into societies where English is the native tongue and who have spoken English since infancy cannot read English. Problems of adult literacy in Australia and ongoing efforts to improve the reading skills of English-speaking adults in Australian communities may be taken to be notorious.

1. The general approach to be taken to questions of discrimination on particular grounds, such as race, was the subject of analysis by members of the High Court in Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92. That was a case of alleged discrimination against a school pupil on the grounds of disability. The process to be engaged in is the same regardless of the type of discrimination that is alleged. The question to be addressed is whether the treatment that was in fact afforded to the particular person possessing the particular characteristic (such as race or disability) differed from that which would have been afforded in like circumstances to a person within a relevant comparator group.

1. There was a difference of opinion in the High Court as to how the relevant comparator group should be defined. The pupil concerned was excluded from the school because of violent behaviour produced by brain damage that he had suffered at birth. The brain damage was the disability. The majority held that the comparator group was violent pupils whose violent behaviour did not result from a disability (see Gleeson CJ at [11], Gummow, Hayne and Heydon JJ at [223] - [225] and Callinan J at [273]).

1. In the circumstances of the present case, therefore, the comparator group is students unable to read English whose inability does not result from race, ethnicity or national origin.

1. Let it be assumed, for the purpose of argument, that Ms McHugh did speak to the appellant in the presence of the whole class in the way he alleges, that is, that she said, "You could not read English"; and that that statement was believed by Ms McHugh to be a true statement warranted by her observations of the appellant in the course of teaching him. It is then necessary to hypothesise a TAFE student within the comparator group whose attributes are the same as those of the appellant except for race (but including, according to Ms McHugh's assessment, inability to read English), to place that hypothetical student in the position that the appellant occupied in relation to Ms McHugh and to determine whether that hypothetical student would have been addressed by Ms McHugh in the terms she used in addressing the appellant.

1. There can be no real doubt, to my mind, that Ms McHugh would have spoken to the hypothetical student in exactly the same terms as she spoke to the appellant. The ability to read English was an objective and well-based requirement for all students if they were to engage effectively in the study, examinations and other tasks involved in the particular e-commerce course. The course was conducted in English and the written materials that students were required to study were in English. The set assignments were in English. The examination papers were in English. A statement in the terms alleged would properly have been directed to any student unable to read English, regardless of the student's race, ethnicity or national origin. The statement was concerned with a proficiency that was an essential qualification for undertaking a course conducted in the English language and involving written materials of various kinds in English. It was the proper province of a teacher to raise with a student the teacher's perception that the student lacked that particular proficiency. A teacher doing so could not be regarded as acting on the grounds of race.

1. This assessment of the element of TAFE's alleged conduct consisting of Ms McHugh's statement "You could not read English", coupled with the fact that the balance of the August 2004 complaint went to matters having no conceivable racial connotation or basis, leads to the conclusion that the appellant did not, by communicating that complaint, allege acts of the kind referred to in s 50(1)(c).

1. It follows that, such conduct, if any, as TAFE engaged in "on the ground" that the appellant made the allegations in the August 2004 complaint was not conduct proscribed by s 50(1).

1. The appellant's challenge to the decision of the Appal Panel based on misconstruction and misapplication of s 50(1)(c) therefore fails.

1. The amended notice of appeal advanced certain grounds of appeal in addition to the first ground (which covered the matters of misconstruction and misapplication of s 50(1)(c) with which I have dealt). However, counsel for the appellant said, in written submissions:

"If Mr Chi fails on the first ground of appeal, there is no need to consider any further ground of appeal."

1. That being so, the Court is not required to consider the other grounds of appeal or whether any of them involves "a question of law" as referred to in s 119(1) of the Administrative Decisions Tribunal Act.

1. I propose the following orders:

1. Appeal dismissed.

2. That the appellant pay the respondent's costs of the appeal.

1. GZELL J: I agree with Barrett JA.

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Decision last updated: 18 December 2012